Cassimus v. Ellrich Homes Company

29 So. 2d 204, 158 Fla. 499, 1947 Fla. LEXIS 555

• Court: Supreme Court of Florida
• Decided: February 14, 1947
• Status: Published

Opinion

BUFORD, J:

The appeal brings for review a decree awarding mandatory injunction.

It has been stated by counsel for each of the parties at the bar of this court, and the record before us so shows, that some of the material facts were different from those alleged in the bill of complaint and were also different from those found to exist in the final decree. Both counsel say that the discrepancies were not observed by either counsel until they were preparing the briefs on this appeal and were not brought to the attention of the Chancellor. '

The record also shows that the Chancellor declined to require Escambia County to be made a party defendant in the suit. We think Escambia County is probably not a necessary party but, as defendant relies on a lease from Escambia County as a defense to his right to hold a part, or parts, of the involved land, we think the county would be a proper-party-defendant so that it may be heard as to the validity, force and effect of its alleged lease if it be advised to defend the same.

For the reasons stated, the decree is reversed and the cause remanded to the court below with directions that it be returned to the rolls for such further action and proceedings, as may-properly follow.

So ordered.

THOMAS, C. J., ADAMS and BARNS, JJ., concur.